'Do you think we're gullible?' Skeptical prof highlights flaws

Pressured to compromise, coalition debates new proposal for judicial appointments

Under revised plan pitched by Rothman, government would choose first two Supreme Court justices in Knesset term, further appointments would need support of judge and opposition MK

Architects of the government's judicial overhaul package Religious Zionism MK Simcha Rothman and Justice Minister Yariv Levin speak during a debate in the Knesset plenum, February 22, 2023. (Yonatan Sindel/Flash90)
Architects of the government's judicial overhaul package Religious Zionism MK Simcha Rothman and Justice Minister Yariv Levin speak during a debate in the Knesset plenum, February 22, 2023. (Yonatan Sindel/Flash90)

Coalition party heads convened Sunday night to discuss ways to modify the drastic judicial overhaul legislation it has been advancing in the face of mass demonstrations and civil disobedience against the measures.

One of the ideas under debate is a proposal floated by key coalition lawmaker MK Simcha Rothman on Sunday to change the legislation on the functioning of the Judicial Selection Committee, whereby not all appointments to the Supreme Court would be overtly political.

Under his proposal, a governing coalition would have complete control over the first two appointments to the Supreme Court that open up during its tenure, but require the support of at least one opposition MK and one judge on the committee in order to make further appointments to the court.

The original legislation that was approved in its first reading in the Knesset plenum, by contrast, gives the coalition total control over all judicial appointments without the need for support from either the opposition or the judiciary.

The opposition has refused to negotiate with the government due to the latter’s insistence on not freezing the legislative process, leading to a standoff and the coalition considering unilaterally how to change its radical reform package even as it prepares its current legislation for its final passage into law within days.

Rothman’s suggestion is the first publicly declared effort by the coalition to seemingly moderate its radical reforms, which have been widely denounced by the opposition and numerous legal scholars and jurists as a power grab.

The MK’s proposal was swiftly rejected by the Labor party, as well as campaign groups against the judicial overhaul, while a leading constitutional law professor argued that it was deceptive.

In explaining the rationale behind the new proposal, Rothman, who chairs the Knesset Constitution, Law and Justice Committee where the judicial overhaul legislation is being prepared, said it was designed to have “as many people as possible in Israel feel that the Supreme Court is theirs,” and to enable “the people to choose the judges” but at the same time “to prevent a political force from taking control of the [Supreme] Court.”

According to his newly proposed changes, the Judicial Selection Committee would be expanded from nine to 11 members, six of them from the governing majority. It would comprise three government ministers from three different parties; three coalition MKs from three different parties; two opposition MKs from two different parties; and three Supreme Court justices, including the court president.

Illustrative: Then-justice minister Ayelet Shaked seen with then-chief justice Miriam Naor, Finance Minister Moshe Kahlon and members of the Judicial Selection Committee at a meeting of the committee at the Ministry of Justice in Jerusalem on February 22, 2017. (Yonatan Sindel/Flash90)

Appointments would be made through a simple majority of six out of 11 members for the first two appointments to the Supreme Court in a Knesset’s term. After those appointments, the majority needed would remain six out of 11 but among those six at least one member of the opposition and one judge would need to support the nomination in order to approve it.

In effect, this would mean that two coalition-backed justices could be appointed with ease, and any remaining appointments could be consensus candidates.

According to the new proposal, the coalition and opposition parties would elect their representatives for the committee separately in a secret vote in the Knesset plenum.

This would ensure that the coalition could not skew the committee in its favor by appointing opposition members who are favorable to the government’s position and not representative of the opposition as a whole.

According to a spokeswoman for Rothman, the system of electing the Supreme Court President by seniority on the court will not be changed, which would also give the coalition less sway over the committee. Discussions in Rothman’s committee on Monday did not definitively confirm this, however.

Prof. Yaniv Roznai, a constitutional scholar at Reichman University, expressed heavy skepticism toward Rothman’s idea, arguing that it lacked adequate safeguards and was disingenuous. He noted that the coalition is also planning legislation that would allow it to name the Supreme Court president, changing the existing situation in which the presidency is based on seniority.

“What about if in the first committee meeting, they appoint a Supreme Court president? Will they be the representative of the judiciary [on the selection committee]? Why do you think we are gullible?” Roznai tweeted.

Prof. Yaniv Roznai at a Times of Israel Live event in Jerusalem’s Israel Democracy Institute, December 15, 2022. (Oded Antman/IDI)

Should the current Knesset last its entire four-year duration, as many as four Supreme Court justices would reach the current mandatory age of retirement of 70. Removing a judge from office would require the vote of nine out of 11 committee members.

Asked Roznai: “What happens if they reduce the mandatory retirement age to 65? Will they appoint more judges with a six out of 11 majority?”

For appointments to the lower courts, appointments would need the support of seven out of the 11 committee members. The judicial members of the committee would also be different and include the president of the Supreme Court along with the president of a district court to be chosen by a panel of district court presidents, and a president of a magistrate’s court to be chosen by a panel of magistrate court presidents.

This would ensure that a governing coalition could not appoint judges to the district and magistrate’s courts by itself, Rothman said.

MK Simcha Rothman, Head of the Constitution Committee, at a committee meeting at the Knesset in Jerusalem on March 5, 2023. (Erik Marmor/Flash90)

“I think that everyone who has followed the [committee] hearings sees that there is an attempt here to put people’s minds at ease,” said Rothman.

“We cannot live with the reality of a court that holds so much power, which replicates itself, and which produces clones of its worldview,” he continued, however, defending his goal of appointing Supreme Court judges without the input of the judiciary in the process.

“With these arrangements, we have managed to square the circle so that the people can choose the judges, while on the other hand addressing concerns about the abuse of political power to take over the court,” he said.

Labor party leader Merav Michaeli rejected Rothman’s proposal, saying that for the coalition to appoint judges to the Supreme Court by itself would be akin to “bringing an idol into the Temple,” adding that “it’s Hungary and Poland on steroids,” and calling on the rest of the opposition to oppose the proposal as well.

Yesh Atid chairman Yair Lapid and Blue and White chairman Benny Gantz did not immediately respond to the proposal.

A statement put out in the name of “the leaders of opposition to the dictatorship” said that Rothman was “offering to carry out a terror attack inside the Supreme Court,” and that it constituted “bringing in servile judges [to the court] who are obligated to the government and not the law.”

Labor party head Merav Michaeli leads her faction meeting at the Knesset, January 16, 2023. (Olivier Fitoussi/Flash90)

The bill to change the composition of the Judicial Selection Committee is just one of several bills designed to limit the power of the judiciary, and curtail the oversight of legal officials within the mechanisms of government.

Another critical bill, which has also passed its first reading, would drastically reduce the High Court’s scope for judicial review over Knesset legislation, in part by demanding a very high bar to strike down laws — a panel of all 15 High Court judges and a majority of 80 percent.

The coalition’s goal is to restrain what it says is the court’s judicial activism by adding conservative justices to the bench who will be less inclined, on an ideological level, to intervene in Knesset legislation.

Netanyahu’s coalition, in which his Likud is partnered with a collection of ultranationalist and ultra-Orthodox parties, has barreled ahead with legislation that critics say will destroy Israel’s fragile system of checks and balances by concentrating power in the hands of Netanyahu and his parliamentary majority, leaving basic civil and human rights unprotected from potential abuse. Warning that it will constitute a shattering blow to Israeli democracy, they also say it is an attempt by Netanyahu, who is on trial for corruption charges, to escape justice.

Hundreds of thousands of Israelis have taken to the streets over the past two months to protest the sweeping overhaul. Business leaders, Nobel-winning economists, and prominent security officials have spoken out against it, some military reservists have stopped reporting for duty, and even some of Israel’s closest allies, including the US, have urged Netanyahu to slow down.

Rothman’s proposal is the coalition’s first public, unilateral attempt to respond to protesters, its own politicians, and legal experts, who have demanded changes in response to either the content of the reforms or the social polarization created by them.

A general view of the Supreme Court hall during a ceremony for outgoing Supreme Court Judge Uri Shoham in Jerusalem on August 2, 2018. (Hadas Parush/Flash90)

Last week, coalition leaders swiftly rejected a separate judicial reform proposal from President Isaac Herzog that would deny the government two of its key policy points: seizing control over the appointment of judges and creating a mechanism for the government to easily override judicial review. Herzog has warned that Israel faces “real civil war” over the issue, and pleaded with the government to abandon its current legislation.

The fight over judicial selection is key to the first phase of the coalition’s judicial overhaul, and giving the coalition the power to push through its desired candidates is strongly backed by Justice Minister Yariv Levin. He, Rothman and other supporters say that giving politicians authority over appointments to the bench will enhance diversity on a court they claim is insufficiently representative of Israel’s many identities and political ideologies, particularly on the political right.

Currently, Israel’s nine-member Judicial Selection Committee is split between four politicians and five professional representatives, including three judges and two members of the Israel Bar Association.

Proponents of the change object to the veto judges have over appointments to the Supreme Court, since seven out of the nine members must support an appointment, although the coalition also enjoys a similar veto.

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